12 The EastAfrican NEWS OCTOBER 10-16,2015 T H E B IG IN T E RV I EW I came in with a mission to fight corruption, and JOHN GITHONGO Dr Willy Mutunga, Chief Justice and president of the Supreme Court of Kenya, speaks in the first of a series of interviews. You have spoken forcefully specifically about corruption in the judiciary over the past three months. What do you feel has changed? In the battle of perceptions regarding corruption in the judiciary, you were winning. How has that changed? We are struggling hard and winning small and big. We have made a lot of progress in the war against corruption in the judiciary — both the judicial and administrative wings. In fact, we have provided leadership to the other arms of government. The JSC (Judicial Service Commission) has moved against judges and had tribunals established; sacked the accounting officer and five other top directors; and 65 staff members are undergoing disciplinary processes, 17 of whom are accountants or clerks on interdiction. And we did some of this two years ago, long before the president’s list of 175 and corruption allegations against Parliament surfaced! We have established the Of- fice of Judiciary Ombudsperson, which has done well in processing public complaints. We are dealing with corruption in the traffic courts; streamlining bail and bond; reducing the time it takes for bail refunds; and working closely with EACC (the Ethics and Anti-Corruption Commission) to capture corrupt officers. JSC has established an Inspectorate Unit headed by professional investigators and we have set up an Internal Risk and Audit Directorate, which has so far audited 30 per cent of our court stations, and the disciplinary processes being undertaken are partly a result of this work. We have shuffled staff who have been in registries for 10 to 20 years, dismantling corruption cartels, some of whom had effectively become part of the local law firms. I have also appointed a committee headed by Justice John Mwera to get back lost judiciary land and other assets. Soon, we will be signing a World Bank grant with Transparency International to help to design a comprehensive institution-wide anti-corruption strategy. I am pushing for a forensic lifestyle audit that will start with me and the Supreme Court and cascade down. So, what has changed to warrant the new pronouncements? What has changed is that this elaborate infrastructure is working! We are now able to pick up signals and evidence easily; the public feels a lot more confident about reporting and my recent statements are a reflection of this new fact. I feel the institutional integrity pulse much better. It is also a signal to my judiciary colleagues that we have come so far, so let us not fall back into temptation. But I have realised that in Kenya, you are attacked if you don’t talk and act on corruption; you are also attacked if you talk and act on it. I am in the second domicile — and happily so. What are the greatest risks posed by corruption to the reforms under way in judiciary? The bottom line is, corruption defiles justice and that is unacceptable. In the administrative wing, it robs the public and defrauds it by not giving value for money. And there are at least four risk factors to the fight against corruption in the judiciary. One is political support. Fighting corruption can only succeed in a political environment that is collectively interested and supportive. Two, overcoming a long and hardened institutional culture of corruption and unaccountability. Three, not fully developed internal institutional infrastructure, like the ones I have outlined above that are all embryonic. Four, and significantly, a Bar that is genuinely interested in integrity and expediting trials. All recent polls on corruption in Kenya show a major and growing problem. It is so serious that Kenya is often categorised with failed and failing states where graft is concerned. What are you doing about it? If the country, citizens and the political class, through moral conviction, ethical courage and political resolve, do not in a principled and consistent manner rise up against corruption, then we risk having corruption as the fourth, if not the only, arm of government. Corruption is insidious, and it is fatal. It undermines our constitutional democracy and development in ways unimaginable. It gets worse when it interlocks with ethnicity, fuels electoral contests, compromises national stability and courses its way into the justice system. The irreducible minimum for a successful corruption fight is a political leadership that is committed, one that is ready to pay an electoral price to win the war — and one that, as I have learnt from the judiciary, is ready for smear and blackmail but remains steadfast and unceasing. As long as corruption continues to finance our elections, including from the highly abominable counterfeit and illicit trade resources, it will be hard to win this war. If we are not ready to pay a price in the war against graft, then we have no business starting it. The judiciary is doing its part. In addition to the measures I have outlined above, the jurisprudence that is coming from the Judicial Review and Constitutional Divisions of the High Court on corruption — particularly on whether to injunct EACC or DPP (Director of Public Prosecutions) from prosecuting, or whether by being charged the rights of the accused will be breached — is very progressive. The consistent message is that courts are no longer a place for refuge for suspects. We have enhanced the capacity of the anti-corruption courts and they are reorganising to hear matters back-to-back to avoid frequent adjournments. The time taken to determine corruption cases is expected to fall dramatically. Also, for the first time, the agencies involved in the fight against corruption and economic crimes have a forum where ideas can be exchanged on how to deal with administrative and other challenges in processing and trial of economic crimes. We have asked both the judges and magistrates and staff associations to draw up their own anti-corruption strategies for their members as a non-coercive peer review mechanism. At the start of your tenure, there was a feeling that you were winning the battle against corruption in the judiciary. But there is widespread perception that this has changed. Indeed, some argue that the situation is worse than when the Goldenberg saga battered the judiciary. How would you respond to this characterisation? It is a tantalising and titil- lating characterisation but certainly exaggerated. If there were such a feeling, it is based on astronomical expectations but clearly naïve given how deeply rooted corruption is. Challenges exist, and that is why we are creating the anti-corruption infrastructure, but I don’t think we are back to the Goldenberg days even though the battle with cartels, which include lawyers, must continue. The JMVB (Judges and Mag- istrates Vetting Board) vetting is “external” but we now have Willy Mutunga, Chief Justice of Kenya, delivers a ruling strikes out an opposition appeal against the presidential election results on March 30, 2013 by a six-judge bench at the Supreme Court in Nairobi. Picture: File internal mechanisms that are effective and the results are evident. Judges and magistrates know it and have to make a choice between the straight and narrow path or taking great risk personal enrichment. Many judges have been sum- moned to appear before JSC to answer allegations, some of which are frivolous, others justified, including those that are not corruption-related. JSC has found one case meritorious and recommended the setting up of a tribunal to investigate with a view to the removal of a judge and it has commenced its operations. That never used to happen in the Goldenberg days! Ten magistrates are on interdiction and investigation; so are 65 judicial staff members. Many are in court facing charges. One may argue that this “evi- dences” the charge of increased corruption; but, in my view, it only confirms institutional effectiveness in dealing with the problem. The point is that, in Kenya, sometimes when you are the one fighting corruption visibly, that visibility is read as the worsening of the situation while it is actually the reverse. There is a perception that a few large law firms, on behalf of key political actors and their commercial proxies, “own” chunks of the judiciary, and that this has fundamentally undermined the rule of law in Kenya. How would you respond to this analysis? In my tenure, I have fought for the independence of the judiciary from the executive, the legislature, civil society, private interests, the Bar, the tribe, family and friends. If you read my speech in State House when I was being sworn in, and in my foreword to the Judiciary Transformation Framework, establishment of an independent judiciary was a top objective — and I have achieved that. Whereas there are no law firms that “own” the judici